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Sinkhorn v. Lahood

March 17, 2010


The opinion of the court was delivered by: Judge Virginia M. Kendall


Scott P. Sinkhorn ("Sinkhorn"), an employee of the Federal Aviation Administration ("FAA"), filed this employment discrimination suit against Defendant Ray LaHood ("LaHood"),*fn1 Secretary of the Department of Transportation. Sinkhorn's Second Amended Complaint alleged gender discrimination (Count I), race discrimination (Count II), retaliation for engaging in protected activity (Count III), and creation of a hostile work environment (Count IV), all in violation of Title VII, 42 U.S.C. § 2000e et seq . Sinkhorn voluntarily dismissed his race discrimination claim, and LaHood now moves for summary judgment*fn2 on the three remaining Counts of the Second Amended Complaint. For the reasons stated herein, LaHood's Motion for Summary Judgment is granted.


Scott Sinkhorn began working as a air traffic control specialist for the FAA in 1982. (Pl. 56.1 Resp. ¶ 1).*fn3 Sinkhorn is still employed by the FAA and works as an air traffic controller in Aurora, Illinois. (Id.)Sinkhorn's ultimate supervisor is the air traffic manager, a position that various different employees have held over the course of Sinkhorn's employment. (Pl. 56.1 Resp. ¶ 2). At the times relevant to this suit, BillCound ("Cound") was employed as the air traffic manager and Gordon Woodahl ("Woodahl") was an assistant air traffic manager. (Id.)

Curtis Ward ("Ward"), a co-worker of Sinkhorn's, was originally an air traffic controller and was then promoted to a supervisory position. (Pl. 56.1 Resp. ¶ 4). Sinkhorn and Ward did not share the same work schedule and typically worked together fewer than three times a week. (Id.)Sinkhorn had concerns about Ward's behavior, including his use of "ghetto slang" and profanity, and about his habit of telling inappropriate stories. (Id.) When around females, Ward spoke more "carefully," though he used the same language and told the same stories to men and women. (Id.)Mike Kerwin ("Kerwin") was another of Sinkhorn's co-workers, with whom Sinkhorn worked four to five times a week. (Pl. 56.1 Resp. ¶ 5). Sinkhorn complained that Kerwin used "disgusting" language and was offensively flatulent but tended not to pass gas as frequently around women. (Id.)

Starting in 1998, Sinkhorn began writing letters and verbally complaining about the conduct of his co-workers, eventually complaining to at least seventeen FAA employees. (Pl. 56.1 Resp. ¶ 6). Sinkhorn believed that the complaints of female employees were handled more rapidly than his, naming Chrystalina Morris ("Morris") as one female employee whose complaints were handled in a more timely manner. (Pl. 56.1 Resp. ¶ 6; Def. 56.1 Reply ¶ 3.) Sinkhorn reported that after she made an unspecified complaint, Morris was moved to another work area. (Pl. 56.1 Resp. ¶ 6.)

On September 1, 2006, Sinkhorn wrote to the FAA Office of Civil Rights about his complaints. (Pl. 56.1 Resp. ¶ 13). Sinkhorn then wrote to his congressional representative, Congresswoman Judy Biggert. (Id.) Sinkhorn first spoke to an EEO counselor about the issues he was facing at his place of employment on January 9, 2007. (Pl. 56.1 Reply ¶ 10). He filed a formal EEOC complaint on February 8, 2007. (Id.)

In March of 2007, Sinkhorn was diagnosed with Non-Hodgkins Lymphoma. (Pl. 56.1 Resp. ¶ 7). From mid-March to early August of 2007 Sinkhorn was medically disqualified from his duties as an air traffic controller. (Id.) While on medical disqualification from their own positions, FAA employees can fulfill other duties if such additional duties are available, and Sinkhorn did so for all but twenty-nine of approximately 100 days of medical disqualification. (Id.) Sinkhorn asked to use sick leave he had not yet earned for the remainder of his disqualification, requesting 240 hours and eventually using 220 hours. (Pl. 56.1 Resp. ¶ 8).

Many, if not most, of Sinkhorn's Additional Facts rely solely upon his self-serving "Declaration," a signed affidavit, for evidentiary support. This Declaration fails to provide an adequate foundation for his assertions, and contains hearsay and other inadmissible evidence throughout the document. The facts supported solely by Sinkhorn's Declaration are therefore not properly established, and the Court will not consider them in deciding LaHood's Motion for Summary Judgment. See, e.g., Buie v. Quad/Graphics, Inc., 366 F.3d 496, 504 (7th Cir. 2004) ("[S]elf-serving statements contained in an affidavit will not defeat a motion for summary judgment when those statements are without factual support in the record.")


Summary judgment is proper when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed. R. Civ.P 56(c). When determining if a genuine issue of fact exists, the Court must view the evidence and draw all reasonable inferences in favor of the party opposing the motion. Bennington v. Caterpillar Inc., 275 F.3d 654, 658 (7th Cir. 2001); see also Anderson v. Liberty Lobby, Inc.,477 U.S. 242, 255 (1986). However, the Court will "limit its analysis of the facts on summary judgment to evidence that is properly identified and supported in the parties' [Local Rule 56.1] statement." Bordelon v. Chicago Sch. Reform Bd. of Trustees,233 F.3d 524, 529 (7th Cir. 2000). Where a proposed statement of fact is supported by the record and not adequately rebutted, the court will accept that statement as true for purposes of summary judgment. An adequate rebuttal requires a citation to specific support in the record; an unsubstantiated denial is not adequate. See Albiero v. City of Kankakee,246 F.3d 927, 933 (7th Cir. 2001); Drake v. Minnesota Mining & Mfg. Co.,134 F.3d 878, 887 (7th Cir. 1998)("'Rule 56demands something more specific than the bald assertion of the general truth of a particular matter[;] rather it requires affidavits that cite specific concrete facts establishing the existence of the truth of the matter asserted.'").


I. Reverse Gender Discrimination

A Title VII plaintiff may establish gender discrimination using either the direct or the indirect method of proof, see Mateu-Anderegg v. School District of Whitefish Bay, 304 F.3d 618, 623 (7th Cir. 2002), and Sinkhorn here proceeds under the indirect method. Thus, to establish a prima facie case under the framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), he must show that he is a member of a protected class, that he was meeting his employer's legitimate expectations, that he suffered an adverse employment action, and that similarly situated individuals outside of the protected class were treated more favorably.

1. Member of a Protected Class

Because Sinkhorn here alleges reverse gender discrimination, he must satisfy a modified McDonnell Douglas test, as the first prong of McDonnell Douglas is not applicable in cases brought by male plaintiffs. See Mills v. Health Care Servs. Corp.,171 F.3d 450, 457 (7th Cir. 1999). Instead, Sinkhorn must show "background circumstances" that indicate that the employer discriminates against males, or that there was something "fishy" going on. Id.; see also Phelan v. City of Chicago, 347 F.3d 679, 684 (7th Cir. 2003).The evidence presented must "support an inference that the defendant is one of those unusual employers who discriminates against the majority . . . ." Mills,171 F.3d at 455 (quotation omitted).

Sinkhorn presents no argument related to this requirement, ignoring the substantial body of caselaw on the subject (including the six cases cited in LaHood's opening memorandum) and instead stating in his Response that LaHood's failure to challenge Sinkhorn's membership in a protected group constitutes an admission to that effect. (See R. 35 at 8.) Even though Sinkhorn thus inexplicably fails to conform his argument to more than a decade of binding precedent, the Court will ...

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